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'Gotcha' ploy voids murder conviction, high court rules

In a 4-3 decision, it says prosecutors should have told a murder defendant's lawyer a witness would alter pretrial testimony.

Associated Press
Published February 17, 2006

TALLAHASSEE - A man convicted of murdering a groom-to-be the night before his wedding will get a new trial because prosecutors didn't alert the suspect's attorney that a defense witness had changed his story.

The Florida Supreme Court handed down the 4-3 ruling Thursday in a Volusia County case.

Stephen Scipio, 24, was convicted of first-degree murder and sentenced to life in prison without parole for the shooting death of Ogard Smith, 28, at a Daytona Beach nightclub in 2002.

Prosecutors said Smith was killed in revenge for testifying against a third person who was convicted of robbery.

The justices said prosecutors violated court rules by failing to inform Scipio's lawyer that a defense witness, a medical examiner's investigator, told them he had changed his mind about an object he saw under the victim's body.

The defense was blindsided when the investigator testified, contrary to his pretrial statement, that it was a pager rather than a gun. A prosecutor then ridiculed Scipio's defense as being based on "imaginary things" in his closing argument.

Justice Harry Lee Anstead wrote for the majority that the defense might have chosen another strategy had it known of the revised testimony.

"The state's misconduct . . . forced the defense into a humiliating scenario of having its witness turn against the defense," Anstead wrote. He added that the state "completely turned the tables on the defense by this surprise "gotcha' tactic."

Justice Raoul Cantero wrote for the three dissenters that the surprise testimony was a harmless error because other evidence against Scipio was overwhelming. Three witnesses testified they saw Scipio shoot Smith. Another said Scipio admitted the killing.

The victim was shot once in the bar, then crawled to the parking lot where he was shot three more times as Scipio cursed, kicked and taunted him, prosecutors said.